Leonard, C.
The judge, in the course of his charge, made the following observations, viz.: “ The defendants have a right to construct a railroad to run through the country and to cross all highways that intervene along the course of then* track; they have nothing more than a right to cross the highways; they
do not own
them, they
belong to the public.
Every man has a common right with all others to pass along the highway, and the
railroad has no more right m crossing the highway than a person has
in passing along the highway. In crossing the highways, the railroad has the same rights that citizens have in crossing two roads that cross each other at right angles. They are bound to exercise care and prudence in crossing, and
neither has superior
rights.”
The defendant’s counsel asked the court to charge, that the railroad has the right to cross the highways at such speed as it deems proper, so far as the public are concerned, and that there is no negligence to be inferred from the rate "of speed at which the trains are run across the country. The court charged, that they may run at such rate of speed as they think proper, subject to liability to respond for damages they may cause, when not restrained by. municipal laws. Ordinarily they are governed as to speed only by the consideration of prudence.
The defendant’s counsel said : It is not a fact that bears on the question of negligence, and negligence is not imputable from it.
The court then charged: They unquestionably have a right to run at such rate of speed as they please, outside the city limits and when .no municipal law interferes, but if they do damage by their extreme speed, they are subject to respond for it. They are bound to exercise such care and prudence as will guard against injury to persons on the highway. The defendant’s counsel excepted to the refusal to charge as requested, and to the charge as given.
The defendant’s counsel then requested the court to charge his proposition in a more simple form, that the railroad had a right to cross the highways at such rate of speed as they chose, of which the public are bound to take notice.
The court charged as requested, subject to the same qualification, and added : no doubt the public must take notice of the right of the railroad company to run trains at a high rate of speed.
It is difficult to say what idea was finally left upon the minds of the jury, from the observations of the court, taking together the charge and the responses to the requests made by the defendant’s counsel.
The charge conveyed the opinion, that a high rate of speed at the crossings was a fault of the railroad, which would subject them to responsibility for such damages as they should occasion to the citizen who might be injured at the crossing. The court, in responding to the request of counsel, conceded the right to run at such a rate of speed as the railroad thought proper, when not restrained by municipal law, and again added, if they do damage by their extreme speed, they must respond for it. And on the renewal of the request, repeated the same instructions with the like qualifications. The instructions requested were exceedingly important to the defendant’s case.
The evidence was conflicting as to the ringing of the bell and the blowing of the steam whistle, as the train approached
the crossing. These were acts of prudence required by law to be observed, and more than usually necessary when the train was run at a high rate of speed. The statute prescribes that a sign shall be posted at the crossings, calling attention to the fact that it is a railroad crossing, and that the bell shall be rung for a certain distance before the train reaches it. The defendants were alleged to be negligent, as to the precaution of ringing the bell as required by law. The rate of speed increased the danger and the negligence, in case any precaution was omitted.
If the whistle was blown and the bell rung, the engineer in charge might reasonably assume that the plaintiff, who was in sight, approaching the crossing on the public highway, on a line diverging from the rail track but a few yards for a distance of several hundred feet, would be notified of the danger and stop in season to avoid it. There was no want of humanity or care, on the part of the engineer, in continuing the high rate of speed at which the train was running, after he saw the plaintiff on the highway, if he gave the proper signals. The law places no restrictions upon the rate of speed at which the trains may be run across the country, at the crossings of the highways or elsewhere; nor is the train required to stop or reduce the speed at such places. Eor does the law subject the railroad company to liability for damages occurring from the rate of speed, if the signals required by law are observed. It is true that municipal corporations may regulate the rate of speed within them corporate limits; but that fact had no relation to this case, as the accident appears to have occurred at some distance from any city. The qualification suggested by the judge was inappropriate to the occasion. It has been held in numerous cases that the traveler must look out for the trains at the crossings, before driving on to the rail track; and if one is seen to be approaching, it is his duty to wait until it has passed.
(Ernst
v.
The Hudson R. R. R. Co.,
39 N. Y., 66;
Wilds
v.
the same Co.,
24 N. Y., 430.)
The citizen must yield the right of way at the crossings. The traveler, who should drive his carriage on to the track
when he saw the approach of a tram, would bring the injury on himself, if a collision occurred, and would have no just claim for the recovery of damages. A train of ears running at a high rate of speed, as it appears was done in this instance, cannot be stopped until it runs several hundred feet after the signal to stop has been given. . It would be impracticable to require them to stop when the citizen intending to pass was nearer to the crossing than the train, or for any other reason. The object of the signals is to notify the traveler, so that he can look out for his safety, and allow the train to pass the crossing before he exposes himself to danger by a possible collision. If the traveler prefers to pass the crossing when the train is approaching, he does it at his own risk, and it is not true that the railroad company is subject to the damages which may be occasioned, by the rate of speed, or by refusing to stop and yield the right of way to the private citizen, where the company have carefully observed the requirements of the law as to signals.
The instructions asked for were correct in principle,, and the defendant was entitled to have the law so declared.
The qualification, as to the liability of the company for damages occasioned by the rate of speed at which they ran their trains, was incorrect, and the reference to city limits and municipal law was inappropriate. The idea, or principle of law, as presented by the request of counsel, was changed and confused by the qualifications of the court. It is impossible to determine that no injury was occasioned by the refusal to give the instructions demanded, without any qualification.
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Leonard, C.
The judge, in the course of his charge, made the following observations, viz.: “ The defendants have a right to construct a railroad to run through the country and to cross all highways that intervene along the course of then* track; they have nothing more than a right to cross the highways; they
do not own
them, they
belong to the public.
Every man has a common right with all others to pass along the highway, and the
railroad has no more right m crossing the highway than a person has
in passing along the highway. In crossing the highways, the railroad has the same rights that citizens have in crossing two roads that cross each other at right angles. They are bound to exercise care and prudence in crossing, and
neither has superior
rights.”
The defendant’s counsel asked the court to charge, that the railroad has the right to cross the highways at such speed as it deems proper, so far as the public are concerned, and that there is no negligence to be inferred from the rate "of speed at which the trains are run across the country. The court charged, that they may run at such rate of speed as they think proper, subject to liability to respond for damages they may cause, when not restrained by. municipal laws. Ordinarily they are governed as to speed only by the consideration of prudence.
The defendant’s counsel said : It is not a fact that bears on the question of negligence, and negligence is not imputable from it.
The court then charged: They unquestionably have a right to run at such rate of speed as they please, outside the city limits and when .no municipal law interferes, but if they do damage by their extreme speed, they are subject to respond for it. They are bound to exercise such care and prudence as will guard against injury to persons on the highway. The defendant’s counsel excepted to the refusal to charge as requested, and to the charge as given.
The defendant’s counsel then requested the court to charge his proposition in a more simple form, that the railroad had a right to cross the highways at such rate of speed as they chose, of which the public are bound to take notice.
The court charged as requested, subject to the same qualification, and added : no doubt the public must take notice of the right of the railroad company to run trains at a high rate of speed.
It is difficult to say what idea was finally left upon the minds of the jury, from the observations of the court, taking together the charge and the responses to the requests made by the defendant’s counsel.
The charge conveyed the opinion, that a high rate of speed at the crossings was a fault of the railroad, which would subject them to responsibility for such damages as they should occasion to the citizen who might be injured at the crossing. The court, in responding to the request of counsel, conceded the right to run at such a rate of speed as the railroad thought proper, when not restrained by municipal law, and again added, if they do damage by their extreme speed, they must respond for it. And on the renewal of the request, repeated the same instructions with the like qualifications. The instructions requested were exceedingly important to the defendant’s case.
The evidence was conflicting as to the ringing of the bell and the blowing of the steam whistle, as the train approached
the crossing. These were acts of prudence required by law to be observed, and more than usually necessary when the train was run at a high rate of speed. The statute prescribes that a sign shall be posted at the crossings, calling attention to the fact that it is a railroad crossing, and that the bell shall be rung for a certain distance before the train reaches it. The defendants were alleged to be negligent, as to the precaution of ringing the bell as required by law. The rate of speed increased the danger and the negligence, in case any precaution was omitted.
If the whistle was blown and the bell rung, the engineer in charge might reasonably assume that the plaintiff, who was in sight, approaching the crossing on the public highway, on a line diverging from the rail track but a few yards for a distance of several hundred feet, would be notified of the danger and stop in season to avoid it. There was no want of humanity or care, on the part of the engineer, in continuing the high rate of speed at which the train was running, after he saw the plaintiff on the highway, if he gave the proper signals. The law places no restrictions upon the rate of speed at which the trains may be run across the country, at the crossings of the highways or elsewhere; nor is the train required to stop or reduce the speed at such places. Eor does the law subject the railroad company to liability for damages occurring from the rate of speed, if the signals required by law are observed. It is true that municipal corporations may regulate the rate of speed within them corporate limits; but that fact had no relation to this case, as the accident appears to have occurred at some distance from any city. The qualification suggested by the judge was inappropriate to the occasion. It has been held in numerous cases that the traveler must look out for the trains at the crossings, before driving on to the rail track; and if one is seen to be approaching, it is his duty to wait until it has passed.
(Ernst
v.
The Hudson R. R. R. Co.,
39 N. Y., 66;
Wilds
v.
the same Co.,
24 N. Y., 430.)
The citizen must yield the right of way at the crossings. The traveler, who should drive his carriage on to the track
when he saw the approach of a tram, would bring the injury on himself, if a collision occurred, and would have no just claim for the recovery of damages. A train of ears running at a high rate of speed, as it appears was done in this instance, cannot be stopped until it runs several hundred feet after the signal to stop has been given. . It would be impracticable to require them to stop when the citizen intending to pass was nearer to the crossing than the train, or for any other reason. The object of the signals is to notify the traveler, so that he can look out for his safety, and allow the train to pass the crossing before he exposes himself to danger by a possible collision. If the traveler prefers to pass the crossing when the train is approaching, he does it at his own risk, and it is not true that the railroad company is subject to the damages which may be occasioned, by the rate of speed, or by refusing to stop and yield the right of way to the private citizen, where the company have carefully observed the requirements of the law as to signals.
The instructions asked for were correct in principle,, and the defendant was entitled to have the law so declared.
The qualification, as to the liability of the company for damages occasioned by the rate of speed at which they ran their trains, was incorrect, and the reference to city limits and municipal law was inappropriate. The idea, or principle of law, as presented by the request of counsel, was changed and confused by the qualifications of the court. It is impossible to determine that no injury was occasioned by the refusal to give the instructions demanded, without any qualification. The conduct of the defendant, as presented by the charge, was high-handed and lawless. It improperly carried the suggestion that the company claimed to own the highway at the crossing, and that the public, and the plaintiff, had been illegally deprived of the enjoyment of the rights secured by law.
I am satisfied that ah error was committed in this respect, and that the exception was well taken.
The judge also instructed the 'jury, that the plaintiff will be presumed to be free from fault, if nothing else appears in the
case, because it cannot be supposed that a man would bring an injury upon himself. There is no presumption of negligence against either party. It is the duty of the plaintiff to prove, and the right of the defendant, who is charged with negligence causing an injury, that he should prove, by satisfactory evidence, that he did not contribute to the injury by any negligence on his own part. This proof, in some form, constitutes a part of the plaintiff’s case. It must appeal’, either from the circumstances of the case, or from evidence directly establishing the fact, to the satisfaction of the court and jury, that the plaintiff is free from any fault contributing to the injury.
It may be assumed that the plaintiff, or the party injured, is anxious for his own safety; but it cannot be presumed that the plaintiff is free from fault, if nothing else appears in the case, for the reason that some evidence is required to overcome such presumption, and the plaintiff would be thereby relieved from proving, either by direct evidence or the surrounding circumstances, that he is not in any fault.
(Johnson
v.
The H. R. R. R. Co.,
20 N. Y., 65;
Holbrook
v.
The Utica and S. R. R. Co.,
12 id., 236;
Curtis
v.
Syracuse R. R. Co.,
18 id., 534;
Wild
v.
H. R. R. R. Co.,
24 id., 430.)
The circumstances may show, without other evidence, that there was no contributing negligencq on the part of the injured party; but that is not a mere presumption.
The evidence was conflicting, in this case, as-to the exercise of proper care on the part of the plaintiff, arising in .part from the circumstances under which the accident occurred, as well as from the direct testimony of witnesses. The instruction was wholly without warrant or application to the facts of this case, and was duly excepted to by the counsel for the defendant.
The court admitted evidence on the part of the plaintiff, proving that the flagman employed by the defendant, at this crossing where the accident occurred, had been intoxicated on several occasions previous to the happening of this injury, and that his intemperate habits were known to the officers of the
railroad company. In my opinion this was an error, tending to inflame and mislead the jury.
The flagman was proven to have omitted to give the usual signal when a train was approaching, and to have been intoxicated when he ought to have performed that duty on this occasion. The facts necessary to determine the question of negligence, arising from the conduct of the flagman at the time when this accident occurred, were before the jury. Had he exhibited the customary signal, no negligence could have been predicated upon his intoxication. His previous habits of intemperance had nothing to do with the case. If the signal was omitted, the negligence was the same, whether the flagman was drunk or sober. His neglect on a former occasion, or his former intemperate habits, would not be sufficient to create negligence, or be any evidence of it, when this acci- ■ dent happened.
The evidence objected to tended, like the suggestion that the railroad company did not own the highway, to create a prejudice in the mind of the jury, and invite punitive damages, not directly arising from the occurrence.
The judgment should be reversed, and a new trial ordered, with costs to abide the event.